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EMC Mortgage Corp. v. Jenkins11/1/2005
ncement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by that defendant;
(b) filing a stipulation of dismissal signed by all parties who have appeared in the action.
Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits of any claim that the plaintiff has once dismissed in any court.
The final sentence of Civ.R. 41(A)(1) sets forth the "two-dismissal rule," pursuant to which a plaintiff may voluntarily dismiss a claim by notice only once without prejudice. "Civ.R. 41(A) is clear that a second dismissal by a written notice * * * operates as an adjudication on the merits and prohibits the plaintiff from pursuing that claim again." Fouss v. Bank One, Columbus, NA (June 27, 1996), Franklin App. No. 96APE01-57.
{ } Rather than providing an independent mechanism for dismissal of a third filing, Civ.R. 41(A)(1) describes the effect of a second dismissal. Stewart v. Fifth Third Bank of Columbus, Inc. (Jan. 25, 2001), Franklin App. No. 00AP-258, citing Byler v. Hartville Auction, Inc. (Sept. 26, 1994), Stark App. No. 1994CA-00081. Once a claim has been dismissed under Civ.R. 41(A)(1)(a), a second dismissal becomes an adjudication on the merits of the claim, barring a third filing of the claim under the doctrine of res judicata. Farm Credit Serv. of Mid America, ACA v. Mikesell (May 14, 1997), Coshocton App. No. 96 CA 11, citing Byler. The claim-preclusive effect of res judicata provides that " ' final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction * * * is a complete bar to any subsequent action on the same claim or cause of action between the parties or those in privity with them.' " Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 381, quoting Norwood v. McDonald (1943), 142 Ohio St. 299, paragraph one of the syllabus. The procedural mechanism for asserting that the third filing of a claim is barred by the two-dismissal rule and the doctrine of res judicata is to file a motion to dismiss under Civ.R. 12 or a motion for summary judgment under Civ.R. 56. Stewart.
{ } In response to EMC's complaint, appellant filed a motion to dismiss, citing no section of Civ.R. 12, arguing that the trial court lacked jurisdiction over the subject matter of EMC's claims based on the Civ.R. 41(A)(1) two-dismissal rule. Despite appellant's phrasing of his argument in jurisdictional terms, it is clear from the record that appellant based his motion on the res judicata effect of Chase's prior dismissals and not on lack of subject-matter jurisdiction. A court does not lack jurisdiction over the subject matter of a lawsuit simply because the affirmative defense of res judicata may apply. See City of Gahanna v. Petruziello, Franklin App. No. 03AP-360, 2004-Ohio-2133, at . Thus, it appears that appellant sought relief pursuant to Civ.R. 12(B)(6), which authorizes a court to dismiss a complaint for failure to state a claim upon which relief can be granted.
{ } A motion to dismiss, pursuant to Civ.R. 12(B)(6), is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 548. The movant may not rely on allegations or evidence outside the complaint in support of a motion to dismiss for failure to state a claim upon which relief can be granted, and the court is likewise confined to the averments set forth in the complaint. Id. at 548; Shockey v. Wilkinson (1994), 96 Ohio App.3d 91, 94. Pursuant to Civ.R. 12(B)(6):
* * * When a motio
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